[Cite as State v. Franco, 2023-Ohio-4653.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112669

v. :

ALEX JOEL FRANCO, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, MODIFIED IN PART, 

 AND REMANDED

RELEASED AND JOURNALIZED: December 21, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-22-668857-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Kerry A. Sowul and Glen Ramdhan, 

Assistant Prosecuting Attorney, for appellee. 

Susan J. Moran, for appellant. 

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Alex Joel Franco, appeals his convictions for 

gross sexual imposition, abduction, domestic violence, and endangering children. 
Finding some merit to the appeal, this court affirms in part, modifies in part, and 

remands the matter to the trial court for resentencing.

In March 2022, Franco was named in an eight-count indictment 

charging him with two counts of rape, in violation of R.C. 2907.02(A)(2) (Counts 1 

and 2); one count of attempted rape, in violation of R.C. 2923.02/2907.02(A)(2) 

(Count 3); one count of kidnapping, in violation of R.C. 2905.01(A)(4) (Count 4); 

two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(1) (Counts 5 

and 6); one count of domestic violence, in violation of R.C. 2919.25(A) (Count 7); 

and one count of endangering children, in violation of R.C. 2919.22(A) (Count 8). 

Franco waived his right to a jury trial, and the case was tried to the bench where the 

following relevant evidence was presented.

On the night of March 19, 2022, the victim placed a call for help to her 

father requesting that he call the police because she believed that Franco, the father 

of her four children, was going to rape her. Multiple police officers responded, and 

the state played body camera videos from four of those officers for the court. 

The videos showed the officers at the residence with a few of them 

standing on the front porch and knocking on Franco’s front door, announcing their 

presence. Other officers walked around the sides of the house. Once the front door 

opened, the victim, who was naked, emerged and Franco stood next to her with a 

towel around his waist. The victim excitedly told the officers to come inside the 

house, but Franco attempted to move the victim out of the door way claiming that 

she needed to cover herself, and tried to close the door. The officers commanded 
Franco to stop, and the victim exited the house onto the porch, pleading with Franco 

to let the officers inside the house because the children were scared and crying. 

Officer Michael Fragapane testified that the victim appeared frantic 

when the door opened. He stated that Franco was noncompliant with questioning,

and after a physical struggle, he and other officers were able to handcuff Franco, put 

pants on him, and remove him from the residence. 

The victim testified that she and Franco co-parent four children but

had not been romantically involved for over two years. She testified to the following 

events. Around 8 p.m. on March 19, 2022, the victim drove over to Franco’s house 

with their four children, ages two to eight, for the purpose of picking up a cat. She 

waited in the car, parked in the driveway with the engine running, but Franco called 

her on his cell phone telling her that he was having trouble getting the cat. She asked 

Franco to come outside and sit with the children while she went inside to find the 

cat. As she approached the door to the residence, Franco walked by her and smacked 

her buttocks. She immediately told him, “Come on. I told you not to touch me like 

that.” (Tr. 111.) According to the victim, Franco “went from * * * being calm and 

fine to angry and menacing.” She attempted to leave the house, but Franco blocked 

and locked the front door. She then ran out the back door, but Franco chased her, 

grabbed her, and brought her back inside. Once he had her inside the house, Franco 

physically assaulted her, held her down, and pulled off her pants. 

The victim testified that she was nervous and feared for the safety of 

the children because they were alone outside in the car with the engine running in a 
“bad neighborhood.” (Tr. 120.) Even though she repeatedly expressed to Franco 

her concern about their children, he discounted the concerns, assuring that “the kids 

are fine” (tr. 116), and continued to struggle with her. She told him that she would 

do whatever he wanted if he brought the children inside the house — “I was just 

trying to do anything to get him off of me.” (Tr. 118-119.) When Franco went outside 

to retrieve the children, the victim sent an audio message to her father pleading for 

help and for him to call the police. 

Franco came back into the house with their children and forced the 

victim into the bathroom. The victim stated she begged him to stop, but he pinned 

her against the bathroom door, removed her sweatshirt, and attempted to perform 

oral sex on her. According to the victim, Franco then forced her into the bathtub 

where he digitally raped her. The attack on the victim ceased when their eight-yearold son told them that someone was at the front door. 

The victim did not seek medical attention, but officers took 

photographs of the victim’s injuries, including bumps, bruises, scratches, and a 

broken fingernail. The state also introduced photographs taken of Franco that 

showed scratches to his shoulder and chest area. 

Detective Sabrina Choat met with the victim following the incident. 

She admitted that she did not recommend to the victim to submit to a SANE 

evaluation because the victim had showered multiple times. She further admitted 

that she did not collect any of the victim’s clothing because she considered the items 

contaminated because the victim had mixed the clothing with other laundry. 
Franco’s eight-year-old son testified that he was seated outside in the 

vehicle with his siblings when he heard screaming and yelling and became scared. 

He stated that while his mom was inside the house, his younger two-year-old 

brother attempted to wriggle out of his car seat, so he undid his brother’s seatbelt. 

He stated that his father then came outside and brought him and his siblings into

the house. According to the child, when the police arrived, he believed they were 

“robbers,” and he went to the bathroom door to tell his parents that someone was at 

the door. He testified that he had heard his parents yelling at each other before, but 

this time the police arrived. 

Following the state’s case-in-chief, Franco moved for a Crim.R. 29 

judgment of acquittal. The trial court agreed with Franco on Count 6, dismissing 

the gross sexual imposition charge where the state alleged that Franco touched the 

victim’s breasts. According to the court, the victim did not express enough certainty 

that Franco touched her breasts. (Tr. 377.)

After the admission of exhibits, the state rested, and Franco did not 

put forth any defense. The trial court announced its verdict the following day, 

providing its rationale to the parties, and found Franco not guilty of Counts 1 and 2, 

both charging rape, and Count 3, charging attempted rape. The court also found 

Franco not guilty of kidnapping as charged in Count 4, but guilty of the lesserincluded offense of abduction, in violation of R.C. 2905.02, and finding that Franco 

committed the offense with a sexual motivation. The court also found Franco guilty 

as charged in Count 5 (gross sexual imposition for touching the victim’s buttocks), 
Count 7 (domestic violence), and Count 8 (endangering children). The trial court 

sentenced Franco to a total prison term of 18 months. 

Franco now appeals, raising three assignments of error that will be 

addressed together where appropriate.

I. Sufficiency of the Evidence 

In his first and third assignments of error, Franco contends that the

state presented insufficient evidence to support his convictions for gross sexual 

imposition and endangering children. 

The test for sufficiency requires a determination of whether the 

prosecution met its burden of production at trial. State v. Cottingham, 8th Dist. 

Cuyahoga No. 109100, 2020-Ohio-4220, ¶ 32. An appellate court’s function when 

reviewing the sufficiency of the evidence to support a criminal conviction is to 

examine the evidence admitted at trial to determine whether such evidence, if 

believed, would convince the average mind of the defendant’s guilt beyond a 

reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 

(1997). The relevant inquiry is whether, after viewing the evidence in a light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime proven beyond a reasonable doubt. Id.

The state charged Franco in Count 5 of the indictment with gross 

sexual imposition in violation of R.C. 2907.05(A)(1). The indictment provided that 

on or about March 19, 2022, Franco
did have sexual contact, to wit: touched buttocks, with [the victim], not 

his spouse, by purposely compelling [the victim] to submit by force or 

threat of force. 

R.C. 2907.01(B) defines “sexual contact” as “any touching of an 

erogenous zone of another, including without limitation the * * * buttock * * * for 

the purpose of sexually arousing or gratifying either person.” In addition to proving 

sexual contact as defined, the state must present some evidence that the defendant 

compelled the victim to submit by force. “Force” is an element of gross sexual 

imposition and means “any violence, compulsion, or constraint physically exerted 

by any means upon or against a person or thing.” R.C. 2901.01(A)(1). 

Franco contends that the state presented insufficient evidence to 

support his conviction for gross sexual imposition because no evidence was 

presented that Franco smacked the victim on the buttocks for purpose of sexual 

gratification. 

The state asserts that there was evidence presented that Franco 

committed other conduct, in addition to smacking the victim’s buttocks, which could 

support a conviction for gross sexual imposition. While this may be true, Count 5 

charged Franco with gross sexual imposition for touching the victim’s buttocks. The 

state could have asked the court during trial to amend Count 5 pursuant to Crim.R. 

7(D) to conform with the evidence if it believed that the evidence did not support the 

specific type of sexual contact charged in the indictment. In response to Franco’s 

Crim.R. 29 motion for judgment of acquittal, the state argued that viewing the 

evidence in favor of the state, it presented sufficient evidence to support the offense 
of gross sexual imposition as charged in Count 5 because the victim “testified to 

[Franco] smacking her on the butt when she came in; that was not welcomed.” (Tr. 

375-376.) Accordingly, because the state did not move to amend the indictment, it 

was required to prove beyond a reasonable doubt the allegations and elements of 

the offense as charged in the indictment. See State v. Crosky, 10th Dist. Franklin 

No. 06AP-655, 2008-Ohio-145, ¶ 62 (state failed to amend indictment to conform 

with the evidence in a child-rape case; thus it was required to prove sexual conduct 

as charged in the indictment).

Upon review of the evidence, we find that the state did not establish 

the essential elements of gross sexual imposition as charged in Count 5 beyond a 

reasonable doubt because, at a minimum, the state presented insufficient evidence 

that Franco purposely compelled the victim to submit to the touch of her buttocks

by force. 

The victim testified that Franco smacked her buttocks after she 

entered Franco’s home and walked by him. When asked whether the smack was 

hard, the victim responded:

Yeah. Kind — it was kind of playful, like. Like as if we were together or 

something like that. Just like a pat on the back, hey, you know, just 

swatting me on my butt. It wasn’t like he was hitting me maliciously. 

It was, I guess, trying to be flirtatious or something like that, to that 

effect. But it was not welcomed and I asked him not to do that.

(Tr. 111.) The victim did not testify that this single slap was anything but playful or 

flirtatious, or that Franco compelled her to submit to the offensive touching. 
This court finds that no evidence exists in the record that Franco used 

any force or threat of force beyond the force of the act itself, which is legally 

insufficient to meet the “force” element of the crime of gross sexual imposition. See 

In re J.W., 8th Dist. Cuyahoga No. 109031, 2020-Ohio-4065 (evidence sufficient for 

gross sexual imposition when defendant placed victim’s hand on defendant’s penis 

over top of his pants, but evidence insufficient for gross sexual imposition where the 

defendant placed his own hand over top of the victim’s clothing to touch her thigh 

and vagina); see also State v. Biggs, 2022-Ohio-2481, 192 N.E.3d 1306 (5th Dist.)

(insufficient evidence for gross sexual imposition where no evidence of force was 

presented beyond the act itself). 

In State v. Dunn, 8th Dist. Cuyahoga Nos. 112301 and 112916, 2023-

Ohio-4413, this court recently considered a case involving a defendant who was 

convicted of two counts of gross sexual imposition for his conduct of grabbing his 

neighborhood mail carrier’s breast and his neighbor’s buttocks. Regarding the 

count involving the mail carrier, this court found the evidence insufficient to support 

the offense of gross sexual imposition, but sufficient for sexual imposition, because 

the defendant did not use any force beyond the act itself, which was grabbing the 

victim’s breast. Id. at ¶25. This court reasoned that the state did not prove the 

element of “force” because the defendant did not manipulate the victim’s clothing, 

did not tell her to do anything or prevent her from doing anything, and did not 

threaten the victim; the only force used was the act itself. Id. at ¶ 27-28. 
Regarding the count naming the defendant’s neighbor as the victim, 

this court upheld the defendant’s conviction for gross sexual imposition because 

even though the defendant only felt the victim’s buttocks, sufficient evidence was 

presented to support an inference of force based on the circumstances surrounding 

the sexual contact. Id. at ¶ 30. This court reasoned that the state proved the element 

of force because the defendant had previously touched the neighbor in an 

inappropriate sexual manner in the past by feeling her buttocks while she did yard 

work. Based on this prior experience, force was inferred when the defendant entered 

the neighbor’s yard this time, talked in a sexual manner toward her, returned to her 

yard after being guided away by a neighbor, pursued the victim as she tried to escape 

from him, and upon reaching the victim, touched her buttocks. Id. at ¶ 31. 

Much like the mail carrier victim in Dunn, the victim in this case 

testified that Franco’s slap to her buttocks was an unwanted touching. Nevertheless, 

gross sexual imposition pursuant to R.C. 2907.05(A)(1) requires that the victim’s 

submission to sexual contact be obtained by force or threat of force, and the state 

did not present any evidence that Franco used any force other than the act itself to 

cause this unwarranted touching. And unlike the neighbor victim in Dunn, the 

victim in this case did not testify that she tried to retreat prior to Franco slapping 

her buttocks or that he pursued her to engage in that conduct, to allow this court to 

make an inference of force based on the circumstances surrounding the sexual 

contact. Accordingly, even viewing the evidence in a light most favorable to the 
state, we find that insufficient evidence was presented to support Franco’s 

conviction for gross sexual imposition. 

We find that the evidence is sufficient, however, to support the lesserincluded offense of sexual imposition pursuant to R.C. 2907.06(A)(1). “‘Sexual 

imposition is a lesser-included offense of gross sexual imposition because it does not 

require proof of the additional element of force.’” J.W. at ¶ 17, quoting State v. Roy, 

2014-Ohio-5186, 22 N.E.3d 1112, ¶ 42 (9th Dist.). R.C. 2907.06, the sexual 

imposition statute, provides in relevant part: “No person shall have sexual contact 

with another, not the spouse of the offender * * * when * * * [t]he offender knows 

that the sexual contact is offensive to the other person * * * or is reckless in that 

regard.” R.C. 2907.06(A)(1). See, e.g., State v. Gesell, 12th Dist. Butler No. CA2005-

08-367, 2006-Ohio-3621 (sufficient evidence presented to support sexual 

imposition conviction where the defendant, a stranger to the victim, grabbed the 

victim’s buttocks in a bar). 

The victim testified that as she approached the door to Franco’s 

residence, Franco walked by her and smacked her buttocks. She immediately told 

him, “Come on. I told you not to touch me like that.” Accordingly, the evidence 

suggests that Franco knew that this contact would be unwelcomed and offensive to 

the victim. Additionally, the evidence supports that Franco committed the act with 

the purpose of sexual arousal or gratification. The victim testified that in the days 

prior to the incident, Franco sent her sexually explicit video- and picture-messages 

of women’s backsides or women “twerking.” (Tr. 151.) In the messages, Franco 
disregards the victim’s expressed lack of interest in these messages and with him.

Franco’s prior messages coupled with his subsequent conduct of chasing the victim 

and attempting to engage in further sexual activity suggests that his purpose or 

motivation for his “flirtatious” slap to the victim’s buttocks was for sexual arousal or 

gratification. Accordingly, viewing the evidence in a light most favorable to the state, 

sufficient evidence was presented to support the elements of sexual imposition 

pursuant to R.C. 2907.06(A)(1).

Merely satisfying the elements of sexual imposition through the 

victim’s testimony, however, is not enough for a conviction. R.C. 2907.06(B) 

requires the state to present evidence corroborating the victim’s testimony. The 

corroboration requirement, however, “does not mandate proof of the facts which are 

the very substance of the crime charged.” State v. Economo, 76 Ohio St.3d 56, 59, 

666 N.E.2d 225 (1996). “The corroborating evidence necessary to satisfy R.C. 

2907.06(B) need not be independently sufficient to convict the accused, and it need 

not go to every essential element of the crime charged. Slight circumstances or 

evidence which tends to support the victim’s testimony is satisfactory.” Id. at 60. 

Courts have traditionally found that the corroboration element is an “easily met 

burden.” State v. Manolakas, 8th Dist. Cuyahoga No. 86815, 2006-Ohio-4263, ¶ 11 

(corroborating evidence supplements existing evidence that tends to strengthen or 

confirm); see also State v. Cole-Walker, 1st Dist. Hamilton No. C-200038, 2021-

Ohio-1507, ¶ 10 (recognizing that “Ohio law sets a low bar for R.C. 2907.06(B) 

corroboration.”). 
In this case, the police were called to Franco’s home based on a frantic 

call the victim placed to her father. When the police arrived and Franco opened the 

door, the victim was naked in the doorway and Franco had a towel around his waist. 

The victim begged the police to come inside the home and pleaded with Franco to 

let the police inside. Once the officers separated the parties and secured the scene, 

the victim told the officers that Franco slapped her buttocks as she walked by him, 

and when she told him that he was being disrespectful by doing so, his demeanor 

changed, causing him to chase her around the house; grab, drag, and carry her back 

inside the house when she tried to flee; and remove her clothing. The officers 

testified about their interactions with the victim, and body camera video was 

admitted into evidence. Based on the foregoing, the state presented sufficient 

evidence corroborating the victim’s testimony that Franco slapped the victim’s 

buttocks and this unwelcomed and offensive touching was the catalyst that caused 

Franco’s subsequent conduct. Accordingly, we find merit to Franco’s first 

assignment of error, but modify his conviction in Count 5, as this court is permitted 

to do under R.C. 2945.79(D), to sexual imposition as defined in R.C. 2907.06(A)(1).

In his third assignment of error, Franco contends that insufficient 

evidence was presented to support his conviction for endangering children because 

his conduct did not create a substantial risk to the health and safety of his minor 

children. We disagree. 

Count 8 charged Franco with endangering children, in violation of 

R.C. 2919.22(A). The indictment accused Franco of recklessly creating a substantial 
risk to the health or safety of his minor children by violating a duty of care, 

protection, or support. 

In this case, the victim testified that the four children, ranging in ages 

from two to eight, were inside her car with the engine running when Franco agreed 

to wait outside with the children as she tried to retrieve a cat from inside the house. 

Instead, he decided to chase the victim throughout the house, grabbing at her, and 

then dragging her back into the house as she attempted to escape through the back 

door. The victim testified that she pleaded with him to let her go because their 

children were outside in the car with the keys in the ignition and the engine running. 

According to the victim, the neighborhood was not safe for their children to be left 

alone at night in a running vehicle. Despite the victim’s concern and fear that their 

children were unattended outside, Franco reassured her that their children were 

“fine.” 

The parties’ eight-year-old child testified that his youngest brother, 

age two, was seated in his car seat when they arrived at Franco’s house. He stated 

that his brother attempted to wriggle out of the car seat by sliding under the seat 

belt, so he undid his brother’s seatbelt. He stated that he heard screaming and 

yelling when he and his siblings were alone in the car. (Tr. 320.) He stated that his 

father eventually came out to the car and told them to come inside. The child 

testified that when they entered the house, he did not see his mom, but when his 

parents were in the bathroom, he heard his mom crying. (Tr. 326.)
Viewing all of the evidence in favor of the state, we find that a 

reasonable fact finder could find Franco guilty of endangering children. His third 

assignment of error is overruled. 

II. Abduction

In his second assignment of error, Franco contends that his due 

process rights were denied when the trial court found him guilty of abduction 

committed with sexual motivation after it found him not guilty of kidnapping for the 

purpose of engaging in sexual activity. Franco contends that he is not raising a 

sufficiency-of-the-evidence challenge or arguing that the verdicts are inconsistent;

rather, he asks this court “to find that procedurally * * * [the trial court] violated due 

process to convict him” of abduction when it acquitted him of kidnapping. 

(Appellant’s brief, page 11-12). Franco has not offered any legal support for this 

argument. 

App.R. 12(B) requires an appellate court to decide an appeal “on its 

merits on the assignments of error set forth in the briefs under App.R. 16.” In turn, 

App.R. 16 requires appellants to include in their briefs “[a]n argument containing 

the contentions of the appellant with respect to each assignment of error presented 

for review and the reasons in support of the contentions, with citations to the 

authorities, statutes, and parts of the record on which appellant relies.” App.R. 

16(A)(3) and (7). The law is well settled that appellate courts will not address 

underdeveloped arguments because “‘[i]t is not this Court’s job to search the record 

in an effort to ferret out the basis for Appellant’s claims.’” Halliday v. Halliday, 8th 
Dist. Cuyahoga No. 92116, 2010-Ohio-2597, ¶ 17, quoting State v. Lewis, 7th Dist. 

Mahoning No. 01-CA-59, 2002 Ohio 5025, ¶ 79. For this reason alone, this court 

could summarily overrule the assignment of error.

This court could also decline to consider the assignment of error 

because defense counsel arguably invited any error when the trial court found

Franco guilty of abduction under R.C. 2905.02(A) and (B). Invited error occurs 

“when a party has asked the court to take some action later claimed to be erroneous.” 

State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). 

During his Crim.R. 29 motion, defense counsel posited that the state 

did not prove kidnapping as charged in Count 4, but that the evidence could support 

a charge of abduction. “Finally, your Honor, I would ask you to take a look at Count 

4, the kidnapping, and if the Court is going to consider that in terms of guilt or the 

failure to prove guilt beyond a reasonable doubt, that that could go through as an 

abduction and not as a kidnapping.” (Tr. 373-374.) In response, the court 

“appreciate[d] sort of generally the idea that maybe this seems more like abduction,” 

but when it reviewed the elements of kidnapping, the court stated:

We’ve heard that she tried to leave and he wouldn’t let her out. He 

threw her over his shoulder and carried her back into the house, and he 

did so with purpose of engaging in sexual activity. By all accounts, her 

allegation is that his purpose was to force her to have sexual conduct 

with her, sexual activity with her. 

(Tr. 375-375.) Accordingly, the trial court denied counsel’s motion for acquittal on 

the kidnapping offense under the Crim.R. 29 legal standard. (Tr. 377.) 
This court concludes that although the state satisfied its burden under 

a Crim.R. 29 standard and the trial court found that sufficient evidence was 

presented when viewing the evidence in favor of the state to prove the kidnapping 

charge, the trial court believed that the state did not satisfy its burden of proving 

beyond a reasonable doubt that Franco committed the act of kidnapping. Instead, 

and as initially requested by defense counsel, the court found Franco guilty of the 

lesser-included offense of abduction. See State v. Jeffries, 182 Ohio App.3d 459, 

2009-Ohio-2440, 913 N.E.2d 493 (11th Dist.) (conviction of lesser-included offense 

based on defense-requested jury instruction on the lesser-included offense is 

deemed invited error). Accordingly, the defense received what it asked for. 

Nevertheless, when looking at the evidence and the elements of both 

kidnapping under R.C. 2905.01(A)(4) and abduction under R.C. 2905.02(A) and 

(B), and considering the trial court’s lengthy rationale in rendering its verdict and 

the verdict itself, this court can only reconcile the court’s verdict by finding that the 

court did not find the victim’s testimony, alone, sufficient to support the element of 

“sexual activity.” “Sexual activity” is defined as “sexual conduct, sexual contact, or 

both.” R.C. 2907.01(C). 

The court in rendering its verdict was troubled by the lack of 

corroborating evidence to support the victim’s testimony that Franco engaged or 

attempted to engage in sexual activity with her. (Tr. 458-461) (trial court finding 

Franco not guilty of both counts of rape, and single count of attempted rape (which 

both require proof of sexual activity) based on lack of corroborating evidence). 
For Franco to be found guilty of kidnapping as indicted, the state had 

to prove that Franco “did, by force, threat, or deception, purposely remove [the 

victim] from the place where she was found or restrain [her liberty] for the purpose 

of engaging in sexual activity * * * with [the victim] against her will.” (Emphasis 

added.) R.C. 2905.01(A)(4). In finding Franco not guilty of rape and attempted 

rape, the trial court necessarily found that the state did not satisfy its burden of 

proving beyond a reasonable doubt that sexual activity occurred or was attempted;

therefore it is not surprising that the trial court found Franco not guilty of 

kidnapping.

The trial court found, however, that the state proved the lesserincluded offense of abduction. R.C. 2905.02(A) provides, in relevant part, that “no 

person * * * shall knowingly * * * (1) by force or threat, remove another from the 

place where the other is found; or (2) by force or threat, restrain the liberty of 

another under circumstances that create a risk of physical harm to the victim or 

place the other person in fear.” Additionally, subsection (B) provides that “no 

person, with a sexual motivation, shall violate division (A) of this section.” The trial 

court did not specify which subsection — (A)(1) or (A)(2) — upon which it found 

Franco guilty, but concluded that Franco acted with sexual motivation when he 

committed the act of abduction. “‘Sexual motivation’ means with a purpose to 

gratify the sexual needs or desires of the offender.” R.C. 2971.01(J).

“Sexual activity” is not “sexual motivation” because both have been 

specifically defined by the legislature, and neither includes the other. A person can 
engage in conduct with a purpose to gratify their sexual needs or desires without 

engaging in sexual activity as defined under the law. Proof of a sexual gratification 

purpose does not require direct evidence of arousal or gratification. A “trier of fact 

may infer that a defendant was motivated by a desire for sexual arousal or 

gratification from the totality of the circumstances.” State v. Edwards, 8th Dist. 

Cuyahoga No. 81351, 2003-Ohio-998, ¶ 22, citing State v. Oddi, 5th Dist. Delaware 

No. 02CAA01005, 2002-Ohio-5926.

In relation to this case, although the court found that the state did not 

prove beyond a reasonable doubt that Franco engaged in sexual activity with the 

victim, or that his purpose was to engage in sexual activity, the court believed beyond 

a reasonable doubt that he acted with a sexual motivation. Based on the general 

arguments made by Franco, the likelihood that counsel invited the trial court to find 

him guilty of abduction, and our conclusion that the trial court’s verdict does not 

present a due process violation, we overrule Franco’s second assignment of error.

Judgment affirmed in part, modified in part, and remanded for 

resentencing on Count 5, as modified to sexual imposition under R.C. 

2907.06(A)(1), a third-degree misdemeanor. 

It is ordered that the parties share equally the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, in part, any bail pending appeal is terminated. 
Case remanded to the trial court for resentencing on Count 5 and execution of 

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, A.J., and

MICHAEL JOHN RYAN, J., CONCUR